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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 22, 2015

v No. 313074 Wayne Circuit Court MARTEZ CLEMONS, LC No. 12-004371-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 314335 Wayne Circuit Court MARTEZ CLEMONS, LC No. 12-004371-FC

Defendant-Appellant.

Before: M URRAY , P.J., and S AAD and K. F. K ELLY , JJ.

P ER C URIAM

. In this consolidated appeal, de fendant challenges his convicti ons and sentences arising out of two criminal trials. In Docket No. 313074, defendant ap peals as of right his jury trial conviction for first-degree home invasion, a violation of MCL 7 50.110a(2), for which defendant was sentenced to 75 months to 30 years’ imprisonment. In Docke t No. 314335, defendant appeals as of right his jury trial convictions for assault with intent to do great bodily harm less than murder, a violation of MCL 750.84, and six counts of first -degree criminal sexual conduct (CSC-I), a violation of MCL 750. 520b(1)(c) (sexual penetration occurs under circumstances involving the commission of any other felony), for which he was sentenced as a second habitual offender, MCL 769.10, to concurrent sentences of 356 months to 45 years’ imprisonment for each of the six CSC convictions and 6 to 10 years’ imprisonment for the assault conviction. Finding no errors warranting reversal, we affirm defendant’s co nvictions and sentences in both

cases.

I. BASIC FACTS AND P ROCEDURAL HISTORY-2- At defendant’s first trial, he faced charges of first-degree h ome invasion, assault, and multiple counts of CSC-I upon allegations that he assaulted 55- year-old PL in her apartment, which was located in the basement of an apartment complex. The jury at defendant’s first trial found defendant guilty of first-degree home invasion, but was h ung as to the remaining counts alleging assault and CSC. Therefore, a second trial was held o n an amended information, which alleged the assault and CSC counts.
The evidence at both trials was substantially similar. PL tes tified that she woke up in the early morning hours of April 4, 2012 in order to self-administe r a shot for her diabetes. A man kicked in her apartment door. He declared that PL owed him mon ey. When she refuted that statement, he then hit PL in the face, knocking her to the ground. He hit and kicked her and then proceeded to sexually assault her. The man then passed out on her bed. PL grabbed some clothing and fled to a nearby gas station for help. She also r etrieved two “roses,” which PL testified were crack pipes that fell from the man’s pants. Alt hough PL identified defendant as her assailant at both trials, the parties stipulated that PL se lected an individual other than defendant from a live lineup held.

A maintenance worker saw that PL’s apartment door had been kic ked in. There was a man passed out on the bed with his pants down around his ankles . Spots of blood were also found in and around PL’s apartmentand the back door of the apa rtment complex. The apartment manager called 911. Police officers found defendant sleeping i n PL’s bed. They woke him up and asked him to pull up his pants and sit in a chair. Defenda nt told the officers that he had been in the apartment with his friends – Sandra and Jay and that the “old lady” was there when he fell asleep. The officers called dispatch to determine whether any assaults had been reported. Dispatch told the officers that PL had been to the hospital on claims of sexual assault. The officers located pill bottles with PL’s name on it and confirme d that it was her apartment. They placed defendant under arrest.

PL underwent a sexual assault examination. She had laceration s and bruises to her face, knee, hip, and groin. There were no injuries to PL’s genitalia . The nurse collected samples from PL’s cheek, rectum, vagina, and breasts. There was no seminal fluid or sperm cells present on PL’s vaginal, anal, rectal or or al swabs. The swab of PL’s lef t breast revealed DNA from PL and one other person who could not be identified. The swab of PL’s right breast revealed DNA from PL and two others. Defendant could not be excluded as a donor. The two “roses” contained DNA from two donors, but it was impossible to identify the dono rs. Neither PL nor defendant could be excluded. The glass vi als did not contain usable fing erprints. Essentially, there was no DNA evidence connecting defendant to PL.

At both trials, the prosecutor i ntroduced evidence of an assau lt that occurred prior to the assault on PL. Arthur Rucker was a homeless double leg amputee who periodically slept on the inside of the apartment complex’s back door. On the same nightPL was assaulted, Rucker was approached by defendant, whom he recognized from the streets bu t did not know personally. Defendant demanded that Rucker pay him the money that he was ow ed. Rucker denied that he owed defendant any money, wher eupon defendant began to punch Ru cker in the face, knock him-3- to the ground, and beat him. The beating stopped when Rucker’s friend, Gerald Jones, came to the scene. 1 Rucker suffered serious injuries and was hospitalized. Like PL, although Rucker positively identified defendant at both trials, Rucker chose an individual other than defendant during a live lineup.

Defendant was convicted and sente nced as previously stated. H e now appeals as of right.

II. BAD ACTS EVIDENCE
In both appeals, defendant argues that the trial court abused its discretion when it permitted the prosecutor to intr oduce “bad acts” evidence becau se the evidence was used solely to suggest that defendant had a pr opensity to assa ult handicapp ed individuals. We disagree.

“The decision whether [bad acts] evidence is admissible is within the trial court’s discretion and will only be reversed where there has been a cle ar abuse of discretion.” People v Crawford , 458 Mich 376, 383; 582 NW2d 785 (1998). “An abuse of discret ion occurs only when the trial court chooses an outcome falling outside the pri ncipled range of outcomes.” People v Miller , 482 Mich 540, 544; 759 NW2d 850 (2008) (internal quotations and citations omitted). However, preliminary questions of law are subject to de novo review. People v Mardlin , 487 Mich 609, 614; 790 NW2d 607 (2010). “Close questions ari sing from the trial court’s exercise of discretion on an evidentiary issue should n ot be reversed simply because the reviewing court would have ruled differently. . . . The trial court’s decision on a close evidentiary question ordinaril y cannot be an abuse of discretio n.” People v Smith , 456 Mich 543, 550; 581 NW2d 654 (1998).

At defendant’s first trial, the trial court ruled that evidenc e of Rucker’s attack was relevant to show both identity and common plan or scheme. The trial court looked to the fact that, in both attacks, defendant c laimed that the victims owed him money and then struck them in the face when they denied it. The trial court also looked to t he fact that both assaults occurred in the same apartment complex very close in time to one another.
On the first day of defendant’s second trial, defense counsel asked the trial court to reconsider its previous ruling. Counsel argued that the incide nt with Rucker was “[n]ot a sexual assault in any way and our position is that that is clearly mor e prejudicial than probative on the issue of the sexual charges particularly in view of the fact th at the breaking and entering is no longer an issue in this case.” The trial court declined to rev isit the issue on those grounds, finding that the fact that defendant “was convicted of that one count doesn’t change anything.”
On appeal, defendant argues that the evidence of Rucker’s atta ck should have been excluded at both trials.

1 Jones testified at defendant’s f irst trial but did not testifyat the second trial. The trial court gave the jury and adverse inference instruction, advising the j ury that it could infer that Jones’ testimony would have been adverse to the prosecutor’s case.-4- MCL 768.27 provides:
In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or sys tem in doing an act, is material, any like acts or other acts of the defendant whichmay tend to show his motive, intent, the absence o f, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in questio n, may be proved, whether they are contemporaneous with or prior or subsequent th ereto; notwithstanding that such proof m ay show or tend to show the co mmission of another or prior or subseque nt crime by the defendant.
Additionally, MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Itmay, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or s ystem in doing an act, knowledge , identity, or absence of mistake or accident when the same is material, wheth er such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

In order for “bad acts” evidence to be admissible: 1) it must b e offered for a proper purpose; 2) it must be relevant; 3) the probative value of the evidence may no t be substantially outweighed by unfair prejudice; and, 4) that the trial court may, upon reques t, provide a limiting instruction to the jury. People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993) amended 445 Mich 1205 (1994).
A “proper purpose” is one other than establishing the defendan t’s character to show his propensity to commit the offense. VanderVliet , 444 Mich at 74.

Evidence relevant to a nonchara cter purpose is admissible unde r MRE 404(b) even if it also reflects on a defendant ’s character. Evidence is inadmissible under this rule only if it is relevant solely to the defendant’ s character or criminal propensity. Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhausti ve list of reasons to properly admit evidence that may nonetheless also give rise to an inference about the defend ant’s character. [ Mardlin , 487 Mich at 615 (emphasi s in original).]
“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. Evidence that is othe rwise relevant “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consider ations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403 ; People v Mann , 288 Mich App 114, 119 n 12; 792 NW2d 53 (2010).
Defendant argues that the evide nce was inadmissible to prove i dentity because there was nothing uncommon or distinctive about the two assaults. It is generally true that, when-5- introduced to establish identity, the prosecutor bears the heav y burden “to show that the manner in which the crime charged and the other crimes were committed was marked with special characteristics so uncommon, peculiar and distinctive as to lea d compellingly to the conclusion that all were the handiwork of the defendant because all bore h is distinctive style or ‘touch’.” People v Golochowicz , 413 Mich 298, 325; 319 NW2d 518 (1982). However, while this case may be missing the hallmark distinctive style, identity was rel evant because of the proximity in time and location of both assaults.

As far as scheme or plan, “evidence of similar misconduct is l ogically relevant to show that the charged act occurred where the uncharged misconduct an d the charged offense are sufficiently similar to support an inference that they are mani festations of a common plan, scheme, or system. “ People v Sabin (After Remand) , 463 Mich 43, 63; 614 NW2d 888 (2000). The charged act and the prior bad acts do not need to be “part of a single continuing conception or plot” for the prior bad act to be relevant. Id. at 64. “Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing t he charged offense.” People v Sabin (After Remand) , 463 Mich. 43, 63; 614 NW2d 888 (2000) quoting with approval People v Ewoldt , 867 P 2d 757 (1994). In contrast to identity, prior bad acts offered to prove a pattern or practice are subject to a lower r equirement of distinction or uniqueness, and acts offered to prove intent require even a lesser degree of similarity. See People v Smith , 282 Mich App 191, 195; 772 NW2d 428 (2009) (“A high degree of similarity is required [ to show a pattern of conduct]— more than is needed to prove int ent, but less th an is required to prove identity—but the plan itself need not be unusual or distinctive.”)

The prosecutor used Rucker’s assault to demonstrate that defen dant had a common scheme or system in carrying out the attacks. First, defendant located a vulnerable victim. Second, he approached the victim with an accusation that he or she owed him money. Third, when the victim professed that no money was owed, defendant str uck each about the face and eyes with his fists. Thus, evidence that Rucker was attacked i n a similar way just moments before PL was attacked was proba tive of the identity of PL’s as sailant.
Defendant suggests that the prosecutor’s proffered reasons for admitting the bad acts evidence was a mere ruse and that the evidence was solely intended to suggest that defendant acted in accordance with a propensity to assault handicapped pe rsons. A “prosecutor deprives the defendant of a fair trial in arguing that the jury should c onsider the evidence as substantive evidence of the defendant’s guilt.” People v Quinn , 194 Mich App 250, 253; 486 NW2d 139 (1992).
However, the prosecutor was careful to frame her arguments in a manner consistent with the law. She did not ask the jury to convict defendant because he was a bad person; instead, she sought to dispel any doubt in the jury’s mind that defendant wa s not PL’s assailant. This was an appropriate response in light of the fact that neither PL nor R ucker chose defendant from live lineups. Thus, identity was an issue for trial and evidence of Rucker’s attack was offered for a
proper purpose.
Contrary to defendant’s arguments, the probative value of the bad acts evidence in both trials was not outweighed by th e danger of unfair prejudice. M RE 403 provides that relevant-6- evidence “may be excluded if the probative value is substantial ly outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative ev idence.” “All evidence offered by the parties is ‘prejudicial’ to s ome extent, but the fear of pr ejudice does not generally render the evidence inadmissible. It is onl y when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded.” People v Mills , 450 Mich 61, 75; 537 NW2d 909, mod 450 Mich 1212 (1995). “The determination whether the probative value of evidence is substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment of the presentation, credibility, and effect of the testimony.” People v Waclawski
, 286 Mich App 634, 670; 780 NW2d 321 (2009).
Here, the proffered evidence was not of marginal value, but wa s highly relevant to identity. The relevance of the b ad acts evidence was establish ed “through similarities between the charged and uncharged acts, rather than on defendant’s char acter, as shown by the uncharged act.” Sabin , 463 Mich at 63-64 n 10. Additionally, the trial court took g reat pains to properly instruct the juries in both trials as to the limited nature of the evidence. Therefore, any danger of prejudice was minimized by the tr ial court’s instructions to th e jury that it could not use the evidence to conclude that defe ndant was a bad person or that he had the propensity to commit the charged crimes. Jurors are presumed to follow their instructio ns. People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003).
Finally, defendant has failed to show that any error in admitt ing the bad acts evidence was outcome determinative at either trial. People v Knapp , 244 Mich App 361, 380-381; 624 NW2d 227 (2001). Defendant was found naked and unconscious in PL’s apartment. The apartment door had been kicked in.

Because evidence of Rucker’s att ack was relevant to identity a nd scheme and was not outweighed by unfair prejudice, th e trial court did not abuse i ts discretion in permitting the prosecution to present evidence that Rucker was attacked at nea rly the same time, place, and manner as PL.

III. AMENDMENT OF THE INFORMATION
In Docket No. 313074, defendant argues that the trial court er red in allowing the prosecutor to amend the information on the day trial was set to begin to add four counts of penile/genital penetr ation. We disagree.
A trial court’s decision to grant or deny a motion to amend an information is reviewed for an abuse of dis cretion. The trial court abuses its discretion if the result is so contrary to fact and logic that it evidences a perversity of will, a defiance of judgment, or an exerc ise of passion or bias or when an unprejudiced person, considering the facts on which the trial court acted, w ould say there was no justification or exc use for the ruling. [ People v McGee , 258 Mich App 683, 686-87; 672 NW2d 191 (2003) (internal citations omitted).]

Prior to defendant’s first trial , the prosecutor raised the is sue of amending the information. The following exchange took place:-7- MS. WEINGARDEN [prosecutor]: T he complainant in this case is developmentally delayed. She’s an adult woman developmentally delayed. She told the nurse who will testify that she was raped orally, vagi nally and anally. By the time we got to [the] preliminary exam she said she was rape d orally and anally, not vaginally. So the vaginal penetration counts got d ismissed. I did the pretrial interview with her last week. And now she’s saying sh e was raped orally and vaginally, but not anally. So I’m moving to amend the info rmation, the anal penetration counts, there are four of them presently, to add ad ditional counts of vaginal penetration. I’m going to ask your Honor to instruct the jury that they must be unanimous as to their theories on any one of the penetr ation offenses.

***

So what I’ve done is, I made count four is anal penetration. Count five is penis and genital opening. Count six is anal, count seven is p enis and genital opening. Count eight is anal. Count nine is penis and genital opening. Count ten is penis and genital opening. C ount 11 is penis and anal openi ng. So the jury would have the option of deciding which crevice he put it into, but they would have to be unanimous as to each count.

***
THE COURT: All right. And so now you say she says that it wa s anal penetration and not vaginal penetration?
MS. WEINGARDEN: No. Other way around.
THE COURT: Other way around?
MS. WEINGARDEN: Right. He came from behind, but put it in he r vagina she says.

***
THE COURT: All right. So how many separate acts of penetrati on are alleged?

MS. WEINGARDEN: So we’re alle ging two oral/fellatio, and four either anal or genital.

***
THE COURT: And the jury would be instructed that they would h ave to be consistent – or they would have to be unanimous as to which theory four or five, or six or seven, or eightor nine, and ten or eleven, oka y.
And the reason – well, the reason for moving to amend it now a s opposed to subsequent to the proofs?-8- MS. WEINGARDEN: Is to put defense counsel on notice.
Defense counsel strenuously obj ected, noting that such an amen dment would make the district court’s ruling “a piece of crap and worthless.” The trial court clarified:
THE COURT: Okay, thank you very much. Two questions. If I understand correctly, since ther e – you’re adding four alternat ive counts, there is really no more counts – or he couldn’t be convicted of any more counts now than he was on the second amended information, is that correct?

MS. WEINGARDEN: Correct.
THE COURT: The only thing you’re doing is changing your theor ies as to four of those counts for different – as to add, whether it b e genital – I’m sorry, vaginal or anal?

MS. WEINGARDEN: Correct.

THE COURT: And the statute on criminal sexual conduct in the first degree simply talks about sexua l penetration. It doesn’t limit in the statute as to what manner that sexual penetra tion occurs, is that correct? B ecause sexual penetration is defined in [MCL] 755.28 to include sexual interc ourse, fellatio, anal intercourse, or any other intrusi on however slight of any part of a person’s body or any object into a genital or a nal opening, is that correct?

MS. WEINGARDEN: Correct.
THE COURT: Okay. All right. T he court is going to grant the prosecution’s motion to amend the information. The statutes al low amendment of the information at any time be fore, during or a fter to conform with the proofs. All that’s being done here is to change a theory of the prosecution ’s case. And it’s being done in such a manner that the court finds doesn’t prejud ice the defendant, and will require a unanimous verdict on whatever their theory i s. So the third amended information is going to be allowed. And it’s going to read count four or five, count six or seven, count e ight or nine, and count ten or eleven. 2

“A person’s right to reasonable notice of a charge against him , and an opportunity to be heard in his defense-a right to his day in court-are basic in o ur system of jurisprudence.” In re Oliver , 333 US 257, 273; 68 S Ct 499; 92 L Ed 682 (1948). “A defenda nt’s right to adequate notice of the charges against the defendant stems from the Sixth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendme nt.” People v Darden , 230

2 The trial court instructed the jury that each of the counts ha d to be unanimous, so that on the CSC-I counts, the jury would have three options: not guilty, o r guilty as to one of the two alternate counts.-9- Mich App 597, 600; 585 NW2d 27 (1998). “[T]he constitutional n otice requirement is not some abstract legal technicality requiring reversal in the absence o f a perfectly drafted information. Instead, it is a practical requirement that gives effect to a d efendant’s right to know and respond to the charges against him.” Id. at 601. “Whether an accused is accorded due process depends on the facts of each case.” People v McGee , 258 Mich App 683, 700; 672 NW2d 191 (2003).

The prosecutor was entitled to amend the information in this c ase by way of statute and court rule. MCL 767.76 provides, in relevant part:
The court may at any time before, during or after the trial ame nd the indictment in respect to any defect, imperfection or omission in form or subs tance or of any variance with the evidence. If any amendment be made to the sub stance of the indictment or to cure a varian ce between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury . . .and to a reasonable continuance of the cause unless it shall clearly appear from th e whole proceedings that he has not been misled or prejudiced by the defect or vari ance in respect to which the amendment is made or that his rights will be fully pr otected by proceeding with the trial or by a postponement thereof to a lat er day..
New offenses may not be added to an information by way of motio n to amend under MCL 767.76. People v McGee , 258 Mich App 683, 688; 672 NW2d 191 (2003). The statute perm its only corrections of defects where the defendant has been fairlyapprised of the nature of the charges against him. Id . Thus “[a]n information may be amended at any time before, du ring, or after trial to cure any defect , imperfection, or omission in fo rm or substance, including a variance between the information and the proofs, as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime.” People v Higuera , 244 Mich App 429, 444; 625 NW2d 444, 453 (2001).

MCR 6.112(G) further provides that , “[a]bsent a timely objecti on and a showing of prejudice, a court may not dismiss an information or reverse a conviction because of an untimely filing or because of an incorrec tly cited statute or a variance between the information and proof regarding time, place, the manner in which the offense was comm itted, or other factual detail relating to the alleged offense.” (Emphasis added).
Prejudice may be shown when an amendment would force a defenda nt to present a different defense or evidence. McGee , 258 Mich App at 688. However, “[w]here a preliminary examination is held on the very charge that the prosecution see ks to have reinstated, the defendant is not unfairly surpri sed or deprived of adequate not ice or a sufficient opportunity to defend at trial.” People v Goecke , 457 Mich 442, 462; 579 NW2d 868 (1998). In Goecke , the Michigan Supreme Court concluded that the evidence introduced o n charges of second-degree murder (which had been dismissed by the district court and whic h the prosecutor sought to reinstate) would also be used to support the charge of operatin g a vehicle under the influence of alcohol.
Similarly, here, the same proofs supported a charge of CSC-I f or penile/vaginal penetration and penile/anal pene tration. It is clear from the record that the prosecution did not seek to add any counts to the information and sought only to provide alternative theories for the-10- jury to consider. As such, an amendment only cured a defect wh ich was already sufficiently charged and defendant was fairly apprised of the nature of the charges against him. McGee , 258 Mich App at 688. Even if the change “added” counts to the infor mation, MCR 6.112(G) specifically allows such an amend ment. The rule, which is proc edural, supersedes the statute. Goecke , 457 Mich at 460.
Moreover, error in permitting an amendment of the information is not reversal error unless it resulted in a miscarriag e of justice or was inconsist ent with substantial justice. McGee
, 258 Mich App at 693, citing MC L 769.26 and MCR 2.613(A). At de fendant’s first trial, the jury was unable to reach a unanimous verdict on the CSC-I counts and defendant has failed to show that the alleged error undermined the reliability of the verdic t of first-degree home invasion. McGee , 258 Mich App at 693.

Because the prosecution was entitled to amend the information at any time to conform to the proofs and because the amendment did not seek to add additi onal charges, the trial court did not abuse its discretion when it permitted the prosecution to amend the information to provide for alternative theories.

IV. DEFENDANT’S RIGHT TO REMAIN SILENT
In both appeals, defendant argues that he was denied his const itutional right to remain silent when the prosecutor elicited testimony from a police off icer that defendant wanted to talk to an attorney. Defendant argue s that he was in custody at the time he made the statement. We disagree.
“Generally, a claim of prosecutorial misconduct is a constitut ional issue that is reviewed de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). “The test of prosecuto rial misconduct is whether the defendant was denied a fair and impartial trial. The defen dant bears the burden of demonstrating that such an error resulted in a miscarriage of j ustice.” Id. (internal citations omitted).

“We review de novo a trial court’s ultimate decision on a moti on to suppress on the basis of an alleged constitutional violation.” People v Gingrich , ___ Mich App ___; ___ NW2d ___ (Docket No. 310416) slip op p 3.

At defendant’s first trial, th e following exchange took place between the prosecutor and Officer Daines:

Q . Okay. How was [defendant] acting, what was his demeanor lik e?

A . It went through various – you know, laughing, saying he didn ’t do anything, and then crying, and then going back to he doesn’t ca re. I want to talk to my lawyer. He was doing a lot of talking. . . .

Q . So he’s running his mouth, and he’s laughing and crying alte rnatively?

A . Yes.-11- Q . And gives you the story about Jay and Sandra?

A . That quickly faded.

Q . Okay. Explain that.

A . I mean, he could tell me no more. As the evidence started p iling up at the scene the story got thinner and thinner, and to the point w here he just didn’t want to talk about it at all until he talked to a lawyer.

Q . All right. And at any point a t the scene did you read him h is Miranda rights?

A . No.
Defense counsel then objected, saying “I think the prosecutor’s line of questioning is improper, but I’ll leave it at that.” The trial court overruled the obje ction.

The prosecutor then asked wheth er Daines ever confronted “defe ndant about the fact that his shoe matched the print on th e door.” After a side bar, the trial court instructed the jury to “[d]isregard the last question.” At the conclusion of the pros ecutor’s questions, the trial court ordered the jury out of the courtroom and explained:
I asked the lawyers to approachfor a sidebar when . . .Ms. We ingarden asked this officer whether or not the defendant was asked for an explanati on about his shoe print on the door. And the reason I asked for the sidebar is b ecause this officer previously testified that during the course of the conversation with the defendant that at some point he indicated he wanted a lawyer. And so it just wasn’t clear to me at what point this qu estion may have come up.

***
Because [whether defendant was in custody] was the basis of Mr. Upshaw’s objection before, or at le ast that’s what he says at sidebar.
Defense counsel argued that the prosecutor “tainted the jury by bringing up his refusal to continued [sic] to speak after he was – told the officer he wan ts an attorney.” The trial court found the officer’s testimony to be a “non-responsive answer.” The trial court asked the parties to take additional testimony fro m Daines out of the presence of the jury.
After the jury was excused, Daines explained that “[w]hen we g ot there we were asking a whole bunch of find-out questions because we didn’t know what w e had. Once we asked a whole bunch of find-out questions that he was willingly answeri ng, it led up to everything that we figured out.” Daines acknowle dged that from the moment offi cers entered the apartment, defendant was not free to leave. T he trial court questioned Da ines:

Q . And there was conversation w ith him about how he got there?-12- A . Correct.

Q . Because at that point you didn’t know how he got there?

A . Yes, that’s correct.

Q . All right. And that’s when he talked about Sandra and the o ther person?

A . Yes, sir. Can I add something?

Q . Sure, go ahead.

A . For all we knew he was at a friend’s house. So it wasn’t li ke we pointed a finger at him directly right when we got there. It w as hey, what are you doing here.

Q . All right. And so what was the reason why you cuffed him wh en you put [him] in the chair?

A . That was after we found out tha t it was the home of [PL].

Q . Okay. So he was in the chair?

A . Before that he was i n the chair sitting.

Q . Cuffed?

A . No, uncuffed.

Q . Okay. And that’s when you asked him and he told you about S andra and the other person?

A . Yes.

Q . Okay. And then you said that when you found out about [PL], that being her apartment, and you see the pill bottles is that when you cuffed him?

A . Yes.

Q . And why did you cuff him at that time?

A . Because then we were able to, you know, come to the determin ation that it was a home invasion two.

Q . All right. And did you ask him any questions after you cuff ed him?

A . No. He was there sitting down while the evidence tech was t here, while we were doing the investig ation, so everyone – all this e vidence was piling-13- up. And he heard everyone’s comments, everyone’s find-out, you know, queries, so it wasn’t like – you know, it wasn’t a question directed tow ard him, it was a comment that I threw out there so he could think. And I said – and I simply said, you’re going to have a hard time explaining why the bottom of y our shoe matches that footprint on the door.

Q . All right. Okay. A nd was it before or after that you threwthat out that he said he wanted – wouldn’t talk a nymore, or wanted a lawyer?

A . That was after I said that.

Q . All right. And you did not advise hi m of his Miranda rights ?

A . No.

Q . All right. And once he said he wanted a lawyer did you ask him any more questions or throw out any more comments?

A . No, sir.
The trial court determined that defendant was not in custody w hen he was sitting in the chair, but that he was obviously in custody at the time he was handcuffed and should have been advised of his Miranda rights. The trial court found th at any of Daines’s “side comm ents” to the defendant “which were obviously intended to see if they could g et a response” were improper “but that question has been struck, and the witness was not all owed to answer, and so we’ll go forward.” Neither the prosecuto r, nor defense counsel, nor the court believed a cautionary instruction would be helpful.
On the first day of defendant’s second trial, defense counsel referenced Officer Daines testimony at the first trial and asked that the trial court dis allow “any testimony regarding what [defendant] may have said during the questioning.” Counsel ask ed that the trial court revisit its previous finding that defendant w as not in custody prior to the time he was handcuffed, arguing that “realistically he wasn’t f ree to go from th e time he was i n the chair.” The trial court ruled:
All right. Just briefly, the Court is not persuaded that it s hould change its previous ruling in the first tri al; that the questions that wer e initially asked of the Defendant, he was not in custody at the time.
The officers had come into the apartment. They didn’t know wh at the situation was, whether the Defe ndant had a right to be there or not. If I recall correctly – cause I haven’t looked at the transcript before. I t was just brought up moments ago – that the Defendant was asked to sit in a chair, b ut other than that, his freedom wasn’t – he wasn’t deprived of his freedom in any m eaningful way and the officers asked questions until they were able to determ ine that a crime had been committed and the Defendant did not have a right to be the re and that’s the time they placed him under arrest and placed him in handcuffs and there were no further questions asked. So the Court’s going to deny the Defe ndant’s motion to reconsider its decision.-14- “[T]he prosecution may not use statements, whether exculpatoryor inculpatory, stemming from custodial interrogation of the defendant unless i t demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of acti on in any significant way.” Miranda v Arizona , 384 US 436, 444; 86 S Ct 1602, 1612; 16 L Ed 2d 694 (1966). Therefore, the Fifth Amendment prohibits a prosecutor from commenting on adefendant’s silence at trial.” People v Clary , 494 Mich 260, 265; 833 NW2d 308 (2013). “To otherwise allow the prosecutor to use an accused’s silence against him at trial would place an impermissible penalty on the exercise of the accused’s right against self-incrimination” bec ause it would permit the jury to draw “an inculpatory inference.” People v Gallon , 121 Mich App 183, 187; 328 NW2d 615 (1982). “We will not condone conduct which directly or indirec tly restricts the exercise of the constitutional right to remain silent in the f ace of accusation . ‘Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown o nly to contradict his assertion that he did.” People v Bobo , 390 Mich 355, 359; 212 NW2d 190 (1973). For that reason, “ev en in the face of specific accusation of a crime that an accused’s silence may not be used against him.” Id. at360-361. Defendant relies heavily on Bobo but also acknowledges that it has been significantly restricted in recent years, especially in instanc es in which a defendant testifies at trial. See People v Cetlinski , 435 Mich 742, 760; 460 NW2d 534, 542 (1990); People v McReavy , 436 Mich 197; 462 NW2d 1 (1990); People v Sutton (After Remand ) , 436 Mich 575; 464 NW2d 276 (1990).
More recently, this Court has held that “[a] defendant’s const itutional right to remain silent is not violated by the prosecutor’s comment on his silen ce before custodial interrogation and before Miranda warnings have been given.” People v McGhee , 268 Mich App 600, 634; 709 NW2d 595 (2005). Here, the reco rd indicates t hat defendant was neither under arrest nor had he been read his Miranda rights. That does not necessarily end the inquiry because it m ust still be determined whether defendant asserted his right to sil ence in a custodial interrogation situation.

“[W]here the police opt to question a defendant, before advisi ng him of his Miranda rights, and the questioning is investigatory and occurs in a po lice-dominated or police-compelled atmosphere, Miranda would seem to require that the defendant’s responses may not b e used in order to build a case against him.” People v O’Brien , 113 Mich App 183, 195; 317 NW2d 570 (1982). However, “[g]eneral on- the-scene questioning as to fac ts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the holding of Miranda .” People v Dunlap , 82 Mich App 171, 175; 266 NW2d 637 (1978). This is true because officers often act naturally and spontaneously and not every inquiry is “made pursuant to an already-launched investigation” but may be the result of a m ere investigation. Id.
This Court has explained:
It is quite obvious that any questioning anywhere by a police officer generates some pressures and anxieties. However, before defend ant’s contention can be afforded substance under Miranda, the question that must be answered is whether he was in custody or deprived of his freedom of action in any significant way when the officer asked “what happened?” Therefore, it is n ecessary for this-15- Court to determine under what circumstances the statements of d efendant were made.
The question asked by the officer was not the product of a pro cess of interrogation aimed at eliciting incriminatory statements from one whom an investigation had focused upon. Instead, it was a situation of an officer reacting naturally and spontaneously to th e scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an alreadylaunched investigation. The defe ndant had not as yet been plac ed under arrest; neither was he in foreign surroundings nor in a ‘police-dominat ed atmosphere’ as stressed in Miranda. [ People v Jackson , 37 Mich App 664, 669; 195 NW2d 312 (1972).]

The Jackson Court looked to a case from Te nnessee wherein the Tennessee app ellate court found no error in admitting defendant’s statement to police at the sc ene of the crime. Officers in that case responded to a shooting and found the victim in the defend ant’s apartment. Officers asked the defendant “what happened?” an d the defendant replied “I sho t her.” Id. at 315. Similarly, the defendant in Jackson was asked “what happened?” at the scene of a shooting and this Court determined that the testimony was admissible even though he had not been mirandized because he had not been subject to a c ustodial interrogation.

This Court has clarified:
The term “custodial interrogati on” means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. To d etermine whether a defendant was in custody at the time of the interrogation, we l ook at the totality of the circumstances, with the key question being whether the accu sed reasonably could have believed that he was not free to leave. The determi nation of custody depends on the objective circums tances of the interrogation rather than the subjective views harbored by ei ther the interrogating officers or the person being questioned. [ People v Zahn , 234 Mich App 438, 449; 594 NW2d 120 (1999) (internal citations and qu otation marks omitted).]

In Zahn , this Court found that, in suppr essing the defendant’s stateme nt to police, the trial court erred in considering the officer’s testimony that the def endant would not have been free to walk out of the apartment building. The Court found that “This consideration was improper. Because [the officer’s] intention to prevent defendant from lea ving the apartment was not conveyed to defendant, it could not have had any bearing on a d efendant’s understanding of the situation.” Similarly, here, even though Daines testified that defendant was not free to leave PL’s apartment from the moment the officers arrived, there was no indication that this was communicated to defendant. The proper focus is on defendant’s perception of the situation, and not the officer’s opinion about de fendant’s freedom to leave.

In People v Schollaert , 194 Mich App 158, 165; 486 NW2d 312 (1992) “when the sheriff’s deputies entered defenda nt’s home, defendant was not in a custodial interrogation situation where he was compelled to speak or to assert his righ t to remain silent. Although-16- defendant was the focus of the police investigation at that poi nt, the relevant inquiry is whether he was subjected to police interrogation while in custody or de prived of his freedom of action in a significant way.” Similarly, he re, Daines testified that whe n officers arrived at PL’s apartment, they had no idea what situation confronted them. They did not know whether defendant had a right to be there. He could have been the victim of a crime, f or all they knew. The “find-out” questions to which Daines testified were natural and spontaneou s questions that the officers asked as part of their initial in vestigation. The questions we re not aimed at eliciting incriminating statements and, therefore, were not the result of an interrogation and Miranda was not implicated.
With regard to any comment rega rding defendant’s silence at th e first trial, harmless error may be found when a witness’s comment on a defendant’s silence was unsolicited or an unresponsive answer. Gallon , 121 Mich App at 189. Here, the prosecutor’s questioning was not “a studied attempt” to place the matter of defendant’s silence before the jury. People v Sain , 407 Mich 412, 415; 285 NW2d 772 (1979). More importantly, at no ti me did the prosecutor refer to defendant’s silence or argue that his desire to speak with an a ttorney was evidence that he had something to hide. In short, “[t]he prosecutor did not ask the jury to infer guilt from defendant’s silence.” Cetlinski , 435 Mich at 763. Further, defense counsel declined an opportunity for the trial court to give a cautionary instruction. “Jurors are pres umed to follow their instructions, and instructions are presumed to cure most errors.” People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003). Additionally, there was overwhelming evidence that defendant was guilty of first-degree home invasion. He was found passed out in PL’s ap artment, whose door had been kicked in. It appears that the jury had no trouble convicting defendant of first-degree home invasion and struggled only with the CSC counts, undoubtedly be cause of PL’s confusing and inconsistent testi mony during trial.
With regard to defendant’s statements at his second trial – th at he and his friends were at PL’s apartment and that PL was there before defendant passed ou t – the statements were not the result of a custodial interr ogation and, therefore, did run afo ul of Miranda

. V. JUROR QUESTIONS
In Docket No. 314335, defendant argues that due process requir es a new trial because the jurors were actively involved in “filling in any perceived gaps in the prosecutor’s proofs, and in deliberating before the conclusi on of the case.” We disagree.
A trial court’s decision to allow juror questions is reviewed for an abuse of discretion. People v Heard , 388 Mich 182, 188; 200 NW2d 73 (1972). Defendant’s claim tha t allowing the jury to participate in questioning witnesses resulted in a deni al of due process is a constitutional question that this Court reviews de novo. People v Cain , 238 Mich App 95, 108; 605 NW2d 28 (1999).

MCR 2.513(I) provides:
Juror Questions. The court may permit the jurors to ask questi ons of witnesses. If the court permits jurors to ask questions, it must employ a pro cedure that ensures that such questions are addressed to the witnesses by the court itself, that-17- inappropriate questions are not asked, and that the parties hav e an opportunity outside the hearing of the jury to object to the questions. Th e court shall inform the jurors of the procedures to be followed for submitting ques tions to witnesses.
The practice of allowing jurors to ask questions was sanctioned by People v Heard , 388 Mich 182; 200 NW2d 73 (1972):
The practice of permitting questions to witnesses propounded byjurors should rest in the sound discretion of the trial court. It would appe ar that in certain circumstances, a juror might have a question which could help u nravel otherwise confusing testimony. In such a situation, it would aid the fact -finding process if a juror were permitted to ask such a question. We hold that the questioning of witnesses by jurors, and the method of submission of such quest ions, rests in the sound discretion of the trial court. The trial judge may permi t such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions. [ Id. at 187-188.]

The court rule thus embodies Heard’s holding. We decline defendant’s invitation to follow the Minnesota Supreme Court’s decision in State v Costello , 646 NW2d 204, 215 (Minn, 2002). This Court is not bound by the decisions of courts of other sta tes; rather, it is bound by the Supreme Court’s holding in Heard and the court rule. People v Jackson , 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).

The trial court follo wed proper procedure.

VI. SENTENCING ERRORS
Finally, in Docket No. 314335, defendant argues that the trial court violated his due process rights by scoring sent encing guideline offense variable s (OV) and determining defendant’s minimum sentence based on disputed facts that the p rosecutor did not charge and prove beyond a reasonable doubt t o the jury. We disagree.
Under the sentencing guidelines, the circuit court’s factual d eterminations are reviewed for clear error and must be supported by a prepond erance of the evidence. Whether the facts, as found, are adequate to satisfy the scori ng conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpret ation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (internal footnotes omitted.)]
Defendant argues that the trial court violated his rights unde r the Sixth and Fourteenth Amendments to the United States Constitution by engaging in jud icial fact-finding that raised his minimum sentence in violation of the United States Supreme Cour t’s decision in Alleyne v United States ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2014). However, i n Herron , 303 Mich App 392, 405; 845 NW2d 533 (2013), this Court held that Alleyne does not apply to Michigan’s legislative sentencing guidelines:-18- We hold that judicial fact-findi ng to score Michigan’s guidelin es falls within the wide discretion accorded a sentencing judge in the sources and types of evidence used to assist the court in dete rmining the kind and extent of punishment to be imposed within limits fixed by law. Michigan’s sentencing guid elines are within the broad sentencing discretion, informed by judicial factfindi ng, that does not violate the Sixth Amendment. [ Internal quotation marks and cit ations omitted.]
Defendant acknowledges that his argument has been rejected in People v Herron, 303 Mich App 392; 845 NW2d 392 (2013) but raises the issue “for possible Mic higan Supreme Court review.”
Even if the Court was not bound by Herron , defendant’s arguments have no basis in law or fact.

MCL 777.37(1) provides that 50 points are to be scored when “avictim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” The statute spe cifically defines “sadism” as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 77 7.37(3). The Supreme Court has held that:
a defendant’s conduct does not have to be “similarly egregious ” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 po ints, and that, absent an express statutory prohibition, courts may consider circumsta nces inherently present in the crime when scoring OV 7. The relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to ma ke a victim’s fear or anxiety greater by a c onsiderable amount. [ Hardy , 494 Mich at 443-444.]
At defendant’s second sentencing, the trial court acknowledged that it declined to score 50 points for OV 7 at defendant’s original sentencing when he w as sentenced for home invasion. However, the trial court stated:
I think under the circumstances, in light of the fact that he has been convicted now of Criminal Sexual Conduct in the First Degree, t hat changes the Court’s analysis.
Based on her testimony, during the course of the assault, ther e was testimony that he told her he was going to kill her and that he did repeatedly hit and punch her in the face and kick her and called her names, to ld her she smelled like do-do.
It was clear from her testimony and the Court having watched h er testify twice now, and the manner in which she testified, that this did subject her to extreme or prolonged, in particular, humiliation.

It is sufficient to score him 50 points for the purpose of OV 7.-19- The trial court did not err in scoring OV 7 where defendant exe rcised more physical abuse than was necessary to carry out the rape, beating PL.

As for OV 10, MCL 777.40(1) provides that 10 points are to be scored if “The offender exploited a victim’s physical disability, mental disability, yo uth or agedness, or a domestic relationship, or the offender abused his or her authority statu s.” The trial court in this case stated:

I find that the prosecution has provided sufficient evidence o n this point based on the trial evidence that she was developmentally disabl ed, that he exploited this, that he was with her for a period of time.
Her mental disability was apparent to the Court. Since the De fendant was with her for a period of time, the Court is convinced, by a pre ponderance of the evidence, that it would have been apparent to him as well.
I think by the conduct toward her in terms of telling her she smelled like do-do and other things, that he exploited that as well as her p hysical abilities based on her weight, di fficulty moving . . ..
So I am going to score OV 10 at 10 points.
On appeal, defendant seems to argue that because defendant was convicted of CSC-I under MCL 750.520b(1)(c) (sexual penetration occurs under circu mstances involving the commission of any other fe lony) as opposed to MCL 750.520b(g) ( mental incapacity of the victim) the trial court was precluded from considering PL’s obv ious cognitive impairments. Defendant had already been convict ed of first-degree home invas ion at his first trial. Therefore, at the second trial, the “other felony” (first-degree home inva sion) was a foregone conclusion and the jury only needed to determine whether defendant committ ed a sexual assault at the time of the home invasion. It would be absurd to preclude a trial c ourt from considering the aggravating circumstances surrounding the crime. PL was clearl y suffering from a diminished intellectual capacity, as evidenced by her testimony at both tr ials. She was an older woman who lived alone in a basement apartment. The trial court did not e rr in scoring OV 10 at 10 points for defendant’s exploitation of PL’s vulnerability.

Adequate record evidence existe d to support the trial court’s assessment of points on the challenged offense variables.

Affirmed.
/s/ Christopher M. Murray /s/ Henry William Saad /s/ Kirsten Frank Kelly